‘The Terror Courts’ is a scintillating look inside military commissions

In this photo of a sketch by courtroom artist Janet Hamlin and reviewed by the U.S. Department of Defense, Khalid Sheikh Mohammed, far right, writes on a paper as he sits at the defense table with his legal team, Army Capt. Jason Wright, second from left, lawyer David Nevin, left, and a court translator during the Military Commissions pretrial hearing in the Guantanamo Bay U.S. Naval Base in Cuba, Monday, Oct. 15, 2012. Khalid Sheikh Mohammed, who has portrayed himself as the mastermind behind the Sept. 11 attacks, and four other co-defendants were back before a military tribunal, forgoing the protest that turned their last appearance into an unruly 13-hour spectacle. (AP Photo/Janet Hamlin, Pool)

Last month, just minutes into a pretrial hearing for the five men accused of plotting the Sept. 11, 2001, attacks, David Nevin, the lead defense attorney, asked the judge to stop the proceedings. His concern: A third party, possibly the CIA, might be

Last month, just minutes into a pretrial hearing for the five men accused of plotting the Sept. 11, 2001, attacks, David Nevin, the lead defense attorney, asked the judge to stop the proceedings. His concern: A third party, possibly the CIA, might be listening to privileged conversations between the defense attorneys and their clients. “This is not something we made up,” Nevin told the judge. “This is a genuine concern that we have. And as officers of the court and as lawyers, we have to get to the bottom of it before we can go forward.”

Had the allegation been made in a federal court, it would have seemed, at best, a little paranoid. But in the military commissions at Guantanamo Bay, there is an oasis of space for such accusations. The special terrorist courts, which were originally set up by the Bush administration to deal with foreign prisoners accused of terrorism, have been fighting allegations of second-tier justice and double standards since their inception. The Supreme Court weighed in and found the Bush-era commissions unconstitutional. Congress has reformed the commissions twice making them into a kind of hybrid of military courts and federal ones.

Even so, there is still a general sense that something is just not right with the courts at Guantanamo Bay. For most Americans, the specific problems are difficult to recall – something about rough interrogations, hearsay evidence and indefinite detention. The details have remained sketchy. Until now, that is, thanks to the Wall Street Journal’s Supreme Court reporter, Jess Bravin, whose new book anchors the criticisms in detailed facts. The Terror Courts is a comprehensive accounting of the creation of the commissions in the months after the 9/11 attacks. It is a book that pulls no punches. It names names. And, in so doing, it is a gutsy, finely wrought narrative that explains how a small group of Bush-era political appointees managed to develop a parallel justice system designed to ensure a specific outcome.

The ingredients that go into such a system are fairly straightforward, Bravin explains. Strip the defendants of rights. Have an administrator who is both judge and jury. Be selective about the military-commission history on which the system is based – the Bush administration focused on one outlier case – and then make sure to exclude the military’s lawyers so that their fealty to the Uniformed Code of Military Justice doesn’t get in the way of the mission.

The fix, Bravin reports, was in from the outset. The draft of the military commissions order in the month after 9/11 was just 1,800 words, and it “made no reference to basic due process,” he writes. “The only standard was that evidence hold ‘probative value to a reasonable person’. . . There was no requirement that any member of the commission be a lawyer.”

Consider the Pentagon’s general counsel at the time, William Haynes, who oversaw the development of the post 9/11 military commissions. He was a contracts attorney with no experience in the laws of war, Bravin writes, but he told a subordinate drawing up the rules of the commission “to avoid using the word rights – except to state, as the document did, that the order conferred none. Instead of rights, those selected for military commissions would have ‘procedures accorded to the accused.’ ”

Bravin also chronicles the effort to transfer the terrorism portfolio from the Justice Department – which enjoyed a terrorism conviction rate of nearly 100 percent – to one of Attorney General John Ashcroft’s cabinet rivals, Donald Rumsfeld, and how that, too, was meant to put a thumb on the scales of justice. “In one early draft, the secretary of defense would select all the participants – the members of the commission, the prosecutor, the defense attorney – and then would decide any appeals,” Bravin writes.

Days after officials produced that draft, Vice President Dick Cheney brought it to the president and discussed it with him over lunch. “Normally,” Bravin writes, “documents for the president’s approval are filed with the White House staff secretary, who circulates the draft among key officials for last-minute comments or concerns.” Instead, the president signed the commissions order hours after his discussion with Cheney, without the staffing.

The book ends with the May 2012 arraignment of Khalid Sheikh Mohammed, the alleged 9/11 mastermind, and his four co-defendants. I was at that arraignment, and as Bravin reports, it took 13 hours. Defendants misbehaved. Defense attorneys objected. And the prosecution was forced to read almost the whole 87 pages of charges in half-hour rotations. The problem is that by ending there, Bravin leaves readers with plenty of dark stories about the commission’s past, but without a strong sense of how the commissions may have been reformed since then. Bravin leaves the impression the commissions may never transcend their history. His pessimism seems, at best, premature.

While observers could be forgiven for feeling a tug of impatience, the process is lurching forward. During the battle over eavesdropping, Brig. Gen. Mark Martins, the chief prosecutor, spent a week investigating whether something untoward was going on. He announced unequivocally that attorney-client privilege was as safe at Guantanamo as it would be anywhere else. Defense attorneys are continuing to investigate, but no one has suggested that anything was covered up. That, in itself, suggests a step in the right direction.